Cohn v. Wausau Boom Co.
| Decision Date | 14 October 1879 |
| Citation | 2 N.W. 546,47 Wis. 314 |
| Parties | COHN v. THE WAUSAU BOOM COMPANY |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Outagamie County.
The plaintiff, as owner of lot 6 in sec. 24, town 29 north, range 7 east, in Marathon county in this state, commenced this action in April, 1876, for the purpose of procuring to be removed, and abated as a nuisance, certain works constructed and maintained by defendant in the Wisconsin river, in front of said lot, under a claim of right founded upon ch. 45, P. & L. Laws of 1871, amended by ch. 256 of 1873. The complaint further demanded judgment that the defendant, its agents etc., be perpetually enjoined from completing and maintaining said works in front of plaintiff's lot; that plaintiff recover of defendant a specified sum for damages caused by the construction and maintenance of the same; and for general relief.
The circuit court found the following facts: That plaintiff had been for several years prior to the commencement of tenth action, and still was, a lumberman, doing business upon the Wisconsin river and its tributaries, and as such owned and was interested in a large amount of pine timber lands upon that river and its tributaries; that he had been for several years, and still was, the owner in fee and in actual occupation of lot 6 described in the complaint, which lot has upon the east and south sides a frontage upon said river of 1918 feet; that the river opposite said lot, and for many miles above and below it, is a public highway, capable in its natural state of floating to market the products of the forest, and for many years has been and now is much used by the citizens of the state and others for the purpose of floating large quantities of logs, timber and lumber to the markets and mills adjacent to said stream; that directly in front of plaintiff's land the width of the river is about 500 feet, the average width of the main channel (in its natural state) about 90 feet, and the average distance from such main channel to the bank of plaintiff's land about 200 feet; that the general current of the river above and below said land is swift, but that in the natural state of said stream its waters in front of said land, between low-water mark and the thread of the stream, are sluggish and slack; that one of the necessary appurtenances to a saw-mill or lumber manufactory along the bank of said river or near said land, is a boom or pocket in which lumber may be rafted and into which logs and lumber may be floated and there stored; that the waters of said river, in their natural state, in front of said land, are capable of being formed into such a pocket or boom; that said land contains sufficient area and frontage upon the river for the erection of two large saw-mills and their appurtenances, and, in the natural state of the river, the plaintiff, without obstructing its free use and navigation as a public highway can construct and maintain, between low-water mark and the thread of the stream, a boom capable of storing at least 3,000,000 feet of logs; that said land was purchased by plaintiff as a saw-mill site, and with a view to constructing and maintaining, in front thereof, such a boom or pocket that the land is valuable for the purposes just mentioned but otherwise of little value; that at the time mentioned in the complaint, defendant constructed in front of plaintiff's land, along the whole length thereof, between low-water mark and the thread of the stream, a line of piers, booms and piles, at an average distance of about 85 feet from the bank, and about 115 or 120 feet from the main channel of the river in its natural state, and has ever since maintained and used the same for the storage of logs; that the piers were formed by driving into the bed or soil of the river numerous piles, united at the top by bands of iron, and kept in place by filling the piers with stones, the several piers being connected by booms; that defendant has ran several lines of similar piers and booms across said river nearly at right angles to the line of piers and booms above described; that said system of piers and booms forms in front of said land a vast enclosure, and is constantly maintained and used by defendant for the storage of logs and timber; that ever since the construction of said works defendant has appropriated and blocked up the entire bed of the river in front of plaintiff's land and above and below the same, with piles, piers and booms, and has rendered it impassable and unnavigable, except a channel immediately in front of, and adjacent to, plaintiff's land, of an average width of about 85 or 90 feet, which is the only navigable portion of said river for a long distance above and below plaintiff's land; that by reason of the construction and maintenance of said works, the channel of the river has been shifted from its natural place, the current in front of said land greatly increased, and the water there, between low-water mark and said piers and booms, made to flow with great velocity, so as to form the main channel of the river; that, by reason of these facts, the approach to plaintiff's land has been rendered inaccessible for logs and lumber, all connection with the center of the stream cut off, and the fitness of the land for booming and mill purposes destroyed; that defendant has no legal or equitable title to the land between the meandered line and the middle of the river; that defendant might erect and maintain a system of piers and booms further up the river and nearer its east side, which would allow it to effect the purposes of its charter and not abridge plaintiff's riparian rights or the right of the public to navigate the stream; and that, by reason of the construction and maintenance of said piers and booms, plaintiff has suffered special damage.
Upon these facts, the judge held that the plaintiff was entitled to the specific relief demanded in the complaint, except that the damages allowed were merely nominal. Judgment was rendered in accordance with this decision. Defendant filed exceptions to the findings of fact and conclusions of law, and appealed from the judgment.
Judgment reversed and cause remanded.
For the appellant, there was a brief by Silverthorn & Hurley, and oral argument by Mr. Hurley. They cited secs. 10, 11, 26 of defendant's charter (ch. 45, P. & L. Laws of 1871); and as to the validity of such legislation they cited Pound v. Turck, 5 Otto, 464. They further contended that while it is the settled doctrine of this state that the proprietor of lands on a river navigable or unnavigable, "in the absence of express limitation in his title," takes to the thread of the stream, it is equally well settled that he takes subject to the public right of navigation, and that whether he owns the soil under the water or not, "the public has the right to improve, regulate and control the bed of the stream and the flow of the waters therein, in the interest of navigation and commerce." Wis. R. I. Co. v. Lyons, 30 Wis., 62; Arimond v. G. B. & M. Canal Co., 31 id., 316; Delaplaine v. Railway Co., 42 id., 225. See also Boorman v. Sunnuchs, 42 Wis., 233; Diedrich v. Railway Co., id., 248; Stevens Point Boom Co. v. Reilly, 44 id., 295; Same v. Same, 46 id., 237; Jones v. Pettibone, 2 id., 308. The state having the right to make the improvements in question, or to confer authority to do so on the defendant as its agent for the purpose, and defendant having executed the authority so conferred, "in a careful and discreet manner," equity will not decree the structures a nuisance and order them abated, especially at the suit of a private party. Alexander v. Milwaukee, 16 Wis., 247; Lansing v. Smith, 8 Cow., 146, and authorities there cited. The state, indeed, could not itself take plaintiff's property or directly damage it, nor authorize defendant to do so, without compensation; nor has it done so in this case. The riparian owner upon navigable water, whether or not he owns the soil to the center of the stream, has a right to construct wharves, piers, etc., in shoal water in front of his land, only in case he is not "prohibited by local law" (Diedrich v. Railway Co., supra); but since the act of 1873 plaintiff has been prohibited by local law from constructing piers and booms in front of his land. The case is one in which "the subjection of the private right to the public use may impair the private right or defeat it altogether." Stevens Point Boom Co. v. Reilly, 46 Wis., 243. "Everyone who buys property on a navigable stream, purchases subject to the superior right of the commonwealth to regulate and improve it for the benefit of all the citizens." McKeen v. Del. Div. Canal Co., 49 Pa. St., 424. As to the claim that defendant's works were a nuisance from which plaintiff had suffered special damage, counsel contended, among other things, 1. That, if they were constructed in a careful and discreet manner pursuant to the legislative grant of authority, they would be lawful even if a real impediment to navigation. State of Pa. v. Wheeling Bridge Co., 18 How., U.S., 432; Pound v. Turck, supra, and authorities there cited; Crittenden v. Wilson, 5 Cow., 165; Canal Com'rs v. The People, 5 Wend., 423; The People v. Railroad Co., 15 id., 113. 2. That as the court had found plaintiff entitled to only nominal damages, he could not have suffered any special injuries entitling him to maintain a suit for the abatement of the works, even if they were a common nuisance. Lansing v. Smith, 8 Cow., 146; Carpenter v. Mann, 17 Wis., 155; Greene v. Nunnemacher, 36 id., 51. 3. That a suit cannot be maintained in equity, in this state, by a private person, to abate an existing nuisance, because there is a complete and adequate remedy at law (sec. 1, ch. 144, R. S. 1858); and the...
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